Communications Law Exam 3

Roe v. Wade dicta vs. holding example

"We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." (this is the holding). The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. ... The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly." (this is dicta).

Francis Bacon

"knowledge is power"

CHAPTER 1

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CHAPTER 2 SEDITION AND INCITEMENT

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COURT OVERVIEW

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3 interpretations of Freedom of Speech and Press

1. "no limits; no legal damages." 2. "no limits; but legal damages." 3. "some limits; and legal damages."

Court structure: Federal system

1. U.S SUPREME COURT precedents are binding on everyone but the U.S. Supreme Court. can overrule past decisions, but the Court does follow the doctrine of stare decisis—the doctrine that precedents should be followed—so it isn't going to overrule one of its past decisions lightly. binds state courts as well as federal courts. 2. COURT OF APPEALS ( 13 circuits) like squabbling siblings: It's not that unusual for two circuits to disagree on federal law. And when they do, that's grounds for getting a case in front of the U.S. Supreme Court for a binding decision. Are decisions of the 10th Circuit binding on district (trial) courts within the 10th Circuits geographical boundaries? Yes. Are decisions of the 10th Circuit binding on district courts outside of the 10th Circuits geographical boundaries? No. The decisions may, however, be persuasive. And the same rules apply across the United States. 3. DISTRICT COURTS (trial courts, where the action is.)

SUMMARY: The 3 main sources of law

1. judge-made law, also called common law; 2. statutory law made by the legislative branch (and we also include constitutions in this category) 3. and administrative law.

Timeline of First Amendment And Judicial Review

1791—First Amendment 1803—-Marbury v. Madison 1816—Martin v. Hunter's Lessee 1868- - 14th amendment (included states) 1925-- Gitlow v. NY ("liberty" under the Fourteenth Amendment includes freedom of speech and press)

Gangsta rap: The late Tupac Shakur won.

43-year-old trooper and father of two, was shot to death on April 11, 1992, when he stopped an 18-year-old motorist, Ronald Ray Howard, who was speeding down a Texas highway near Aurora in a stolen Chevrolet Blazer blaring rap music. The car was hot in two senses-fast and stolen, but the trooper didn't know it was stolen. The trooper stopped him because of a missing headlight. At the time of the shooting, Howard was listening to "2pacalypse Now" by Tupac (or 2pac) Amaru Shakur, with lyrics such as, "Drop them, or let them drop you. I choose dropping the cop." During his murder trial, Howard testified that listening to Shakur's music gave him "a fight-back attitude versus stay away." The jury convicted Rodney Ray Howard of murder on June 8, 1992. The jury deliberated for approximately half an hour over his guilt. Widow Linda Davidson sued Shakur, Interscope Records, and its parent company, Time-Warner. The "goal" in filing the $100 million suit against Time-Warner, the plaintiff's attorney said, "is to punish Time-Warner and wake up the executives who run the music business." He continued, "It is time giant corporations were stopped from shameless making money off music designed to incite impressionable young men to shoot and kill cops."The suit in federal court claimed the "music contained on the tape was directed to inciting young black males, including Ronald Howard, to kill policemen. The incitement was directed to and resulted in imminent action." In short, it was also a products liability suit. Under an incitement theory, plaintiffs must prove intent. Under negligence theory, plaintiffs must show, among other elements, foreseeability of the harm. But under products liability theory, a plaintiff can win under the doctrine of strict liability, "Strict liability" imposes damages on the basis of "mere causation," regardless of whether a defendant was at fault. On March 27, 1997, the judge granted a summary judgment for the defendants. In short, Linda Davidson lost.

President William McKinley

Six months into his second term as president, in 1901 (September 6), he was shot by an anarchist (Leon Czolgosz). It took McKinley eight days to die. New York and a couple of other states (New Jersey and Wisconsin) then passed laws forbidding anarchists to advocate destruction of the government, and Congress passed an immigration act, barring anyone advocating violent overthrow of our government.

united States v. Spock, 416 F.2d 165 (4th Cir. 1969).

As the Vietnam war wound up, Dr. Spock was arrested in Washington, D.C., for advocating that young men avoid the draft. But in 1969, his conviction was overturned by a federal court of appeals in the case

Times Mirror Company v. The Superior Court of San Diego County

California appeals court cited Hyde a woman sue the Los Angeles Times after the paper reported her name in connection with her discovery of the dead, nude body of her roommate who had been beaten, raped, and strangled. The reporter, a summer intern, had gotten the name through the coroner's office. Again, the court didn't accept the public-record defense.

14th Amendment

Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws. due process of law

federal judges vs. state judges

Federal judges can't make common law, state judges can. Federal judges can't bind state judges, but state judges can bind federal judges on matters of state law.

jurisdiction

If a court has jurisdiction over a case, it means the court has power to hear the case. A court must have two kinds of jurisdiction: First, jurisdiction over the subject matter. Second, a court must have jurisdiction over the person.

Implications of Hyde Case

In letting the Hyde case stand, the Supreme Court sent the message that newspapers could be found liable for printing a news story that exposed a specific victim to an unreasonable, foreseeable risk of harm—even though the defendant arguably was using public records. The law is saying, in effect, that journalists will be their brothers' and sisters' keepers, at least to some degree.

policy

In some cases, it may well be that the policy the court is following is the most important element for you to remember. If judges followed straight-forward logic, it probably wouldn't make that much difference. Judges would be fungible or interchangeable items like ears of corn. Given facts A, B, and C, any judge would come up with D. But it doesn't work that way. For some judges, policy comes first. And then they figure out what sort of logic or nonlogic it takes to get them where they want to go in a case.

Substantive Law

Law that defines, describes, regulates, and creates legal rights and obligations.

Frohwerk v. United States, 249 U.S. 204 (1919)

On the same day it upheld Debs' conviction, the Supreme Court also upheld a 10-year conviction The defendant, Frohwerk, was convicted of conspiring with another in producing the Missouri Staats Zeitung. This paper allegedly attempted to obstruct military recruitment and to cause disloyalty and mutiny in the military. Holmes' opinion cited what precedent? Schenck.

William Prynn

Puritan. He was upset that King Charles I approved recreation on Sundays. In 1633 he wrote a book condemning many of the joys in life and certainly the performing arts. He wrote that women actresses were "notorious whores." Maybe it's kind of like the "casting couch" way back then. Unfortunately for Prynn, the queen, the wife of Charles I, had taken part in a play. found guilty of seditious libel. He was fined and sentenced to life in prison.

Who binds whom?

The U.S. Supreme Court, which is a federal court, binds state courts as well as federal courts. Lower federal courts (courts of appeals and district courts) don't bind state courts. They don't bind state courts when the issue is state law or even when the issue is federal law. State courts do bind lower federal courts on state law.

clear and present danger test

law should not punish speech unless there was a clear and present danger of producing harmful actions The Court then makes clear that the "clear and present danger test" is not a "bright-line" test. determination of whether there is a clear and present danger must by made on a case-by-case basis.

Negligence

occurs when there's a foreseeable risk of harm from a certain activity, but a person still engages in that activity, and the harm then occurs.

types of precedents

persuasive and binding

holding

the court's decision. The case will present a particular question for the court to answer, and the court's answer to the question is its holding.

Reductio ad absurdum in Hyde Case

"To construe the Sunshine Law to open all criminal investigation information to anyone with a request ... courts constitutional violations of the right of privacy of a witness or other citizen unwittingly drawn into the criminal investigation process.... Such a construction leads to the absurdity ... that an assailant unknown as such to the authorities, from whom the victim has escaped, need simply walk into the police station, demand name and address or other personal information—without possibility of lawful refusal, so as to intimidate the victim as a witness or commit other injury."

1. "no limits; no legal damages."

"absolute freedom of speech." say anything they wanted to say without fear of any sort of governmental action against them. Supreme Court Justice Hugo Black supported the position that there should be no libel law. "Congress shall make no law. Period." like the "state of nature" that John Locke and other social contract theorists wrote about—Hobbes, Rousseau, Hume "state of nature," according to social contract theory, is what mankind lived in prior to forming government. It was a state of native freedom, so to speak. In this state of nature, people could say what they wanted, unafraid of what government would do to them, because there was as yet no government. But life without government was risky. The darkest view was that of Hobbes. Men preyed upon each other, and life was, in Hobbes' words, "solitary, poor, nasty, brutish, and short."

The "Red Zone"

"stop" what you're doing. You're in an area where you're in clear legal danger.

john Peter Zenger

"the earliest and most famous American experience with freedom of the press." One of the most notorious early cases of seditious libel prosecution. Zenger had published an anonymous piece in the New York Weekly Journal that criticized the Crown's New York Governor, William Cosby. Zenger's publication zinged Cosby, calling Cosby a tyrant and oppressor, which he probably was, but that was beside the point in those days. Truth was no defense. Quite the contrary. For purposes of seditious libel, if what one said about the government or a governmental official was true, that was considered an aggravating circumstance. To be more specific, to a large extent the purpose of the seditious libel law was to decrease the number of duels. Another point to remember about the charge of seditious libel is this: The jury could only decide whether the accused had printed the words in question. The far more important question of whether the words constituted seditious libel was left up to the judge-a royal court judge back then. The Zenger trial didn't change either of these doctrines—that the truth only aggravated seditious libel and that the jury could only decide if the words were printed, not whether they amounted to seditious libel. When Zenger refused to name the anonymous critic, prosecutors went after Zenger. But he hired a lawyer who was courageous and a real orator, Andrew Hamilton. Hamilton told the jurors that they, not the judge, had the right to decide if Zenger was guilty. The jury agreed and acquitted Zenger. Hamilton won the case not only for Zenger but also for the colonial people and their rights to know what public officials were doing and to express their opinions about the officials.

remand

(v.) to send or order back; in law, to send back to jail or to a lower court (i.e, the appelate courts do not take testimonies. if they have a problem, they send it back to the trial courts).

Court Structure: State system

1. [State's name] Supreme Court 2.Courts of appeals States with more than one court of appeals may have disagreements between or among those appellate courts, and that's a ground for getting a case up to the state's supreme court. Of course, court cases that aren't binding often are adopted because of their impeccable logic, or because they set forth policies that are worthy of adoption. In short, they really are persuasive. 3. Trial courts (called circuit courts or district courts, depending on the nomenclature in the particular state)

John Twyn

1663 printed a book that said that the people have the right to rise up against a king and even put the king to death. Twyn didn't write the book. He only published it. He refused to say who did write it. Blackstone wrote that the standard punishment for high treason for males was this: being "drawn or dragged to the place of execution," and then being disemboweled, beheaded, and then quartered—hacked apart.

The First Amendment

1791; Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

John Stuart Mill

1859 On Liberty

Smith Act

1940 act which made it illegal to speak of or advocate overthrowing the U.S. government. Was used by Truman 11 times to prosecute suspected Communists

Administrative law

=bureaucracy-made law third major source of law. executive branch is supposed to administer the laws, which administrative agencies help do. Legislators write statutes that give these administrative agencies the power to make rules—to make administrative laws. The power to make rules may be expressly stated in the statutes, or the power may be implied in the statutes.

per curiam decision

A court decision without an explanation--in other words, without an opinion. short decision A per curiamdecision is often a unanimous decision, where the judges are "all of one mind," but a per curiam decision doesn't have to be unanimous. A percuriam decision is always a short decision, where a court doesn't think it needs to wax long to explain its ruling.

Binding Precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy.

plurality decision

A decision of the U.S. Supreme Court where a majority of the justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome. no Court majority.

herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987).

A magazine publisher prevailed in an incitement suit.A 14-year-old boy tried an experiment—"autoerotic asphyxia"—as discussed in Hustlermagazine in an article entitled "Orgasm of Death." He died. A copy of Hustler, opened to the article, lay on the closet floor where his nude body hung. "Hustler emphasizes the often-fatal dangers of the practice of `auto-erotic asphyxia,' and recommends that readers seeking unique forms of sexual release DO NOT ATTEMPT this method. The facts are presented here solely for an educational purpose." The court rejected the argument that the article constituted an "incitement to attempt a potentially fatal act," holding that imposing liability would impermissibly infringe on Hustler's freedom of speech.

warnings

A note on warnings: Courts do NOT demand warnings for obvious dangers. For example, courts wouldn't demand that plastic bags carry a warning that users should not put bags over their heads because they might suffocate. But, on the other hand courts do demand warnings for hidden dangers. For example, dangers posed by medications that are not apparent do need warnings so that consumers can make informed choices.

Persuasive precedent

A precedent that a court does not have to follow but can be very influential when determining a case

Code of Federal Regulations

A reference work that compiles regulations of all agencies in a series of volumes

Federal Register

An official document, published every weekday, which lists the new and proposed regulations of executive departments and regulatory agencies. came into being in 1935 from the chaos that had existed with agencies sitting out there spewing rules and regulations, many of which the public never saw. This came to a head in 1934 in a couple of cases— Panama Refining Co. v. Ryan and Amazon Petroleum Co. v. Ryan, 293 U.S. 388 (1934). These cases came up in front of the U.S. Supreme Court. Supposedly violations of New Deal regulations involving the oil industry had occurred. But, unknown to the attorneys on either side of these cases, the regulations had been revoked.

Brandenburg v. Ohio, 395 U.S. 444 (1969).

Clarence Brandenburg, the red-robed leader of a Ku Klux Klan brandenburg was convicted under an Ohio statute for "advocat[ing] ... crime, sabotage, violence, or unlawful methods of terrorism [are there any lawful methods of terrorism?] as a means of accomplishing industrial or political reform." (This Ohio statute is reminiscent of the "unlawful methods of terrorism" The Supreme Court overruled Brandenburg's conviction, saying, "[C]onstitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions." No longer can silly leaflets saying "Workers awake" get you 20 years in the pen. (zenger) Mere advocacy may not be punished, the Supreme Court said. More is required. Advocacy must be (1) directed to inciting or producing imminent lawless action, and (2): "likely to incite or produce such actions." Some scholars analyze the Brandenburg test as a three-part test—1) intent; 2) imminence; and 3) likelihood.

Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921).

Editorials had called the war an unjustifiable, dishonorable, capitalistic war. The president was called an "autocrat," and the Congress was called a "rubber stamp Congress." Again Holmes dissented.

Case citations: federal

For U.S. Supreme Court cases, you'll generally find a cite to the United States Reports, which is the official reporter for U.S. Supreme Court cases. So you'll see "U.S." in the citation. (ex: Near v. Minnesota, 283 U.S. 697 (1931). You have the name of the case, the volume of the reporter (283), the reporter (U.S.), the page number (697) where the case starts, and the year the case was decided (1931). You can also see "S. Ct." or "L.Ed." or "L.Ed.2d." These are cites to the Supreme Court Reporter and to the Lawyers Edition. (commercial publishers to help speed up the process) Federal Court of Appeals decision will be in the Federal Reporter, so you'll see "F." or "F.2d." A federal district court decision, which is a federal trial court decision, will appear in the Federal Supplement (or F. Supp.) if it was decided in 1932 or after.

What cases are heard by SCOTUS?

Generally, the U.S. Supreme Court only bothers with law that deals with the U.S. Constitution or with statutes passed by the U.S. Congress, that is, federal statutes. Generally, for the U.S. Supreme Court to review state law, that state law has to be running afoul of federal law (that is, the Constitution or federal statutes or treaties) AND the case has to be of sufficient general significance.

Debs v. United States, 249 U.S. 211 (1919).

He was sentenced to ten years for a speech he made in Ohio criticizing the government's prosecution of persons for sedition. He extolled the virtues of Socialism in his speech, but that's not what got him in trouble. The problem was that he told the crowd that he had just returned from a prison where he was visiting three of his friends who had aided and abetted another friend in failing to register for the draft. He eulogized those three friends and said he was proud of them. He didn't help himself too much, then, when at his trial he said this to the jury: "I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone." The Supreme Court upheld Debs' conviction for obstruction of recruitment. What precedent did the Court cite? Schenck. That's the only precedent the Court had.

National Socialist Party v. Skokie, 432 U.S. 43 (1977)

How should a tolerant society deal with the intolerant? How do we permit free expression of ideas that would lead to the total suppression of free thought, or, maybe, even the elimination of a whole race? Skokie had enacted some ordinances designed to prevent members of the National Socialist Party from marching through Jewish neighborhoods in their military garb, but the ordinances flunked judicial review. U.S. Court of Appeals for the Seventh Circuit, in 1978, again in a case involving the Village of Skokie and the National Socialist Party, used the First Amendment to uphold the neo-Nazis' right to march. "....must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises."

Jenny Jones

In March 1995, Jonathan Schmitz appeared as a guest on the "Jenny Jones" show to meet a person who had a secret crush on him. He assumed the secret admirer would be a woman, but the admirer was a 32-year-old man, Scott Amedure. Three days later, Schmitz shot Amedure to death. The dead man's family filed a wrongful-death suit against Schmitz, the TV show, its owner, and its producer, Warner Brothers. jury awarded the plaintiff $29,332,686, but the plaintiff ultimately lost in 2002 when a Michigan appeals court reversed "Ordinarily, criminal activity is unforeseeable and a person may reasonably proceed upon the assumption that others will obey the criminal law."

2. "no limits; but legal damages."

In short, you can say anything you want. The government won't stop you. But if in the process you damage someone, you'll pay for those damages. The court system will enforce damages. William Blackstone, who wrote the Commentaries on the Laws of England, was a proponent of this view. Freedom of the press would be destroyed, Blackstone said, if a person weren't allowed to publish what he or she pleased. But after it was published, the person would have to pay the legal consequences if what he or she published was improper or illegal.

Michael Carneal

Incitement by computer games and "The Basketball Diaries" to shoot in schools? No. he argument the parents presented, according to the Sixth Circuit Court of Appeals, is that "Carneal regularly played video games, watched movies, and viewed internet sites produced by the defendant firms. These activities ... `desensitized' Carneal to violence and `caused' him to kill the students of Heath High School." he defendants argued against the parents' charge of negligence, saying, among other things, that the shootings were "not sufficiently foreseeable." The plaintiffs also claimed that the games, movies and Internet sites were defective products, but the trial court dismissed that claim because it "determined that the `thoughts, ideas and images' purveyed by the defendants' movie, video games, and internet sites were not `products' for purposes of Kentucky law and therefore the defendants could not be held strictly liable for any alleged defects." Circuit cited its earlier decision in the case involving a boy's suicide and "Dungeons and Dragons," Watters v. TSR, Inc. (1991).

sedition

It's attacks on government writ large, including government's laws, institutions, and officials. But note that the attacks aren't physical attacks. We're not talking about overt acts of insurrection. We're talking about verbal attacks. Black's Law Dictionary defines sedition as "Communication or agreement which has as its objective the stirring up of treason or certain lesser commotions, or the defamation of the government." Sedition includes, first, treason, which was very liberally defined, and, second, seditious libel—which is the crime of criticizing government.

Stare Decisis

Law is dynamic. It's never static. in the midst of all this flux of changing law, however, it would be nice to have a little bit of stability, right? Stare decisis =the doctrine that precedents should be followed.It's a doctrine that the U.S. Supreme Court considers vital to democracy. Stare decisis helps prevent those in power from using the law and the courts to favor their friends and punish their enemies. It suppresses suppression. By helping to prevent flux, it also helps us plan our future conduct with a greater degree of confidence.

The process of creating law

Laws are the products of large committees, and there are generally at least two warring factions slugging it out to reach a compromise on the law. Democrats v. Republicans warring, the House and Senate battling over what version of a law should be enacted... And often decisions on whether to pass these cobbled-up compromises are made at the eleventh hour of the legislative session. Often the result is less than elegant, shall we say. And so we may well need court opinions to try to figure out what the law really means. interpretation!! Courts are more the law of the land. cases interpret statutes and constitutions, and also give us common law when the judges are creating law on their own.

simpler summary

Let's do a quick summary of Marbury v. Madison, decided in 1803: President John Adams nominated Marbury to be the justice of the peace of Washington, D.C. in an eleventh-hour appointment. The Senate approved, and the President signed and sealed Marbury's formal commission. But it didn't get delivered, so President Thomas Jefferson appointed someone else. Marbury took the matter to the Supreme Court. Marbury wanted to compel Secretary of State Madison to deliver his commission. To compel Madison, however, the Supreme Court would have to issue a writ of mandamus, which is a writ to command a public official to do his job. The U.S. Congress had passed an act that authorized the U.S. Supreme Court to issue a writ of mandamus, and President George Washington had signed that Act. However, Article III of the U.S. Constitution says that the U.S. Supreme Court only has original jurisdiction in matters involving ambassadors or states. Otherwise, the Supreme Court can only hear cases on appeal from other courts. Thus, the Court declared that the Act authorizing the Court to issue writs of mandamus was void. "A law repugnant to the constitution is void," the Court said. The Court also declared, "It is emphatically the province and duty of the judicial department to say what the law is." Besides the doctrine of judicial review of Acts of Congress and the state legislatures, we added to our list of protections (1) that the Supreme Court can review decisions of a state's highest court and (2) that freedom of speech and press are fundamental liberties which states can't abridge without due process and (3) that we can't be forced to incriminate ourselves—our right to remain silent. Under these protections, even if states or communities don't want to tolerate freedom of speech and freedom of press, they'll have to follow national guidelines set by the U.S. Supreme Court. States and communities will have to practice a certain amount of tolerance. Holmes' "marketplace-of-ideas" theory, by and large, will prevail.

Common Law in the U.S.

Many states have statutes that explicitly adopt English law-up to a point. So common law, or court-made law or judge-made law, is one of our sources of laws. Of course, the courts here in the United States continue to make common law.judge-made law=common law

slender man

May 2014: After a slumber party, two12-year-old girls lured a 12-year-old friend into the woods and stabbed her 19 times in order to please a fictional, demon-like Internet character Should the creators of Slender Man and the website "creepypasta.wikia.com" face legal liability for "incitement" of this violent crime? Not under U.S. law, with its First Amendment protections for freedom of expression.

Sandra Hyde case details

Sandra Hyde walking on broadway street in Columbia, MO, when a man pulls up and orders her into the car while leveling a shotgun at her. Hyde got into the car, but managed to escape when the assailant was distracted, and she ran to a nearby convenience store while she awaited police to arrive. Hyde made a report down at the police station. Of course, the report gave her name and address—a couple of facts that her red-haired assailant in a red Mustang didn't have—until a reporter from the Columbia Daily Tribune went down to the police station and looked at the police report. The report was a public record under the Sunshine Law, which makes public records available to the public—at least the newspaper and city of Columbia later argued that. The assailant stalked Hyde, and even threatened to kill her. Did she die? No, but she did sue. Although she sued the city and both newspapers, the Missourian, the paper published by the School of Journalism, got dropped as a defendant. The Missourian had published the name and address after the Tribune had published it and, more importantly, after the stalking had already started. This is one case where it paid for a newspaper to be late. Hyde alleged negligence by the city in disclosing her name and address, and negligence by the newspaper in printing her name and address. The trial court ruled in favor of the defendants, accepting the public-record defense. However, on appeal, the Court of Appeals for the Western District of Missouri ruled that Hyde did indeed have valid grounds to sue for negligence. In flatly rejecting the "Sunshine Law" defense, the court used a reductio ad absurdum argument. The U.S. Supreme Court let the decision stand, meaning that the Court didn't review the decision.

"strict constructionists."

Some judges are quite content to let legislators set policy. They aren't going to read things into the Constitution that aren't explicitly stated there.

federal law vs. state law

State law is law dealing with state statutes, state constitutions, or state common law. Most of the law that affects us in our daily lives is state law—law of marriage, divorce, wills, contracts. Federal law, basically, is law dealing with the U.S. Constitution, treaties, or statutes passed by the U.S. Congress.

The "Yellow Zone"

That means "proceed—with caution." You always want to be careful, but so long as you're proceeding with caution

Schenck v. United States, 249 U.S. 47 (1919).

The U.S. Supreme Court's first sedition case was also its first case interpreting the First Amendment. The case decided in 1919 schenck was the general secretary of the Socialist Party of the United States. He and some other defendants mailed some leaflets out to draft-age young men, telling the men that the draft violated the Thirteenth Amendment of the U.S. Constitution. What does the Thirteenth Amendment of 1865 do? It prohibits slavery or involuntary servitude. Schenck and his codefendants were found guilty of violating the Espionage Act. Justice Oliver Wendell Holmes wrote the opinion for the U.S. Supreme Court. Did the Court say let Schenck go? No. The Court upheld Schenck's conviction. But while upholding the conviction, the opinion also had a major impact on First Amendment law. "The question in every case is whether the words used [(1)] are used in such circumstances and [(2)] are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Hit Man case

The book "Hit Man" took a hit after an unfortunate admission. Instead of going to trial, the book's publishers folded. On May 21, 1999, the case settled out of court. Perhaps the "hit" on the book Hit Man constitutes a special case. The publisher, in effect, had conceded intent.

Certification of The question

The federal court certifies the question to the state court. If there's no certification of the question, then the federal court is just shooting in the dark on how the state court would decide.

writ of habeas corpus

The writ of habeas corpus has been called the "great writ." Its roots are ancient, going all the way back to the Magna Carta in Great Britain in the year 1215. "No freemen shall be taken or imprisoned ... except by the lawful judgment of his peers or by the law of the land." Certainly one of the most common grounds for a convicted person's writ is "ineffective assistance of counsel."

King Henry II

Thirteenth century, decided to make a national court system. king's judges riding around on horses, stopping at little villages to preside over squabbles between villagers. An uneducated jury would hear and decide the case. (where we get the term "circuit judges.") In the process of deciding cases in these common, or vulgar, little courts, the judges were making law—common law.

Erie Railroad Co. v. Tompkins

U.S. Supreme Court decided that there is no federal general common law—that in cases where no federal statutes exist and where U.S. constitutional issues aren't involved, there is no federal law. Federal judges cannot make law in a vacuum. They can only interpret legislative law.

Boumediene v. Bush

U.S. Supreme Court emphasized the importance of the writ of habeas corpus to the founding fathers, the framers of the U.S. Constitution. decided that the writ of habeas corpus was available to detainees at Guantanamo Bay, regardless of the U.S. government's designating them to be "enemy combatants."

Alien and Sedition Acts

Under another part of the Sedition Act, it was a crime to write or publish "any false, scandalous or malicious ... writings" against the U.S. government, president or Congress with the purpose of bringing them into "contempt or disrepute."

Journalistic Ethics

Why its challenging: 1. popular media seem to enjoy portraying journalists as unethical. (EX: Die Hard movie) 2. the law sets the foundation activity, which isn't broken without legal peril. But the law doesn't necessarily set the standards we choose to follow. ("its legal, but is it right?") 3. the law changes; what's legal at one time may very well be illegal at another time, or vice versa. (ex: redskins trademark now illegal)

case citations: state

You'll see the abbreviation for the state somewhere in the case. Note that you can tell the difference between a Supreme Court decision and a Court of Appeals decision (Mo. versus Mo. App.).

Smith v. Linn, 386 Pa. Super 392, 563 A.2d 123

a book publisher prevailed in an incitement suit. a woman died of cardiac arrest. She had lost more than 100 pounds while following a liquid protein diet from When Everything Else Fails...The Last Chance Diet. The plaintiff argued that the book should not be granted First Amendment protection because it's an "incitement to immediate unreflecting action such as the action arising from shouting `Fire!' in a crowded theater...." In short, according to the court, the plaintiff wanted the court to be the first to find a publisher liable for negligent publication of a book. The court declined to do so, even though it was "moved by the grievous circumstances."

reductio ad absurdum

a method of proving the falsity of a premise by showing that its logical consequence is absurd or contradictory. argument where you start with your opponent's position and push that position to its logical extreme. If the result is absurd, then you've destroyed your opponent's argument.

Hyde v. City of Columbia

a negligence suit brought by Sandra Hyde against the city of Columbia and a newspaper, the Columbia Daily Tribune.

john milton

aught up in the maelstrom of sedition, 1644. wo years before that he had married a 16-year-old woman. He was 34 at the time, over twice her age. Let's just say it wasn't a match made in heaven. He wanted a divorce. But getting a divorce back then wasn't that easy. So he wrote a piece calling for the liberalization of the divorce laws. Unfortunately, he didn't get prior clearance before printing this piece, and prior clearance, remember, was mandatory. "Who kills a man kills a reasonable creature, God's image; but he who destroys a good book, kills reason itself...."

diversity cases

cases involving citizens of different states who can bring suit in federal courts. Interplay between the lower federal courts and state courts. Often there's a big argument about what state's law is going to apply in a diversity case. Decisions in state courts concerning state law are binding on federal courts. what if a case is in federal court, it concerns state law, but the state hasn't decided the question? In short, the federal court has to use the state's interpretation of the law, but the state hasn't heard a question on the law before. Most states will allow the federal courts to ask the state's highest court how it would rule on the question. Called certification

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803).

certainly one of the most significant court cases in U.S. history-if not the most significant case. The principle for which Marbury v. Madison is remembered is judicial review the Supreme Court of the United States has the power to review a law passed by Congress and determine whether the law is constitutional. "A law repugnant to the constitution is void." squabble over who would be the justice of the peace for Washington, D.C., as well as some other judgeships. Marbury's commission was signed and sealed, but it hadn't been delivered to him yet. Since it hadn't been delivered, Jefferson chose to disregard Marbury's appointment. He wanted to appoint his own justice of the peace. Several other judicial appointees were in the same boat as Marbury—signed, sealed, but not delivered. The Court, through dicta, said that Marbury was entitled to his commission. But to compel Secretary of State Madison to deliver the commission to Marbury, the Court would have to issue what's called a "writ of mandamus." did the U.S. Supreme Court have the power to issue the writ? Article III of the Constitution says, "The Judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Article III also limits the Supreme Court's original jurisdiction to two types of cases: 1) "cases affecting ambassadors" and "other public Ministers and Consuls" (we'll just lump all these dignitaries under the term "ambassadors)" and 2) "those in which a State shall be a Party." The Constitution says explicitly, "In all other cases, the Supreme Court shall have appellate jurisdiction." In short, the U.S. Supreme Court, according to the Constitution, can't be the first court to hear a case unless the case affects an ambassador or a state is a party. Did the U.S. Supreme Court have the power to issue a writ of mandamus to Madison to compel Madison to deliver the Commission to Marbury? Congress had passed an Act establishing federal courts, which President George Washington signed. the Act also authorized the U.S. Supreme Court "to issue writs of mandamus" to "persons holding office under the authority of the United States." Secretary of State Madison fit that description. He was an officer of the United States. In Marbury, the problem was one of subject-matter jurisdiction. An Act of Congress, signed by the president, said the Court had that power. And, remember, the Court thought Marbury was entitled to the job of justice of the peace. But, on the other hand, there stood the U.S. Constitution, Article III, and it denied the Supreme Court original jurisdiction to issue writs of mandamus. What could do the Court do? Both the Act and the Constitution couldn't be followed. They were mutually exclusive in this case. The Act was in conflict with the Constitution. Marbury v. Madison decided that the Act passed by Congress, which said the Supreme Court could issue a writ of mandamus, was not law. The Court here also made one of the most important declarations it has ever made. The Court declared, "It is emphatically the province and duty of the judicial department to say what the law is." They were more liberal in reading things into the Constitution, in this case, judicial review. In short, the Supreme Court rejected the notion that it had the small power granted by Congress to issue a writ of mandamus. Instead, it declared that it, the Supreme Court, had the supremely huge power to declare what would be the law of the land.

statues and constitutions

constitutions are controlling between the two. Country and states have their own constitutions. Federal statutes are contained in the many volumes of the United States Code (U.S.C.). Every state also has its own compilation of statutes.

Matthew Lyon

entenced to four months in jail and ordered to pay a fine of $1,000. Why? For referring to President Adam's "continual grasp for power" and his "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." The Vermont congressman's constituents re-elected him to Congress by a vote of two to one over his nearest rival.

Star Chamber

established in 1487 to hear criminal cases. It didn't have jurisdiction over capital crimes like treason, but the Star Chamber did hear seditious libel cases, and it used torture to punish those it found guilty. In 1641, the Star Chamber was abolished.

Dennis v. United States, 339 U.S. 162 (1951).

first case arising under the Smith Act. The 11 defendants in Dennis wanted the Court to use the "clear and present danger" test, and the Court did. were the defendants released? No. As a matter of fact, the U.S. Supreme Court has only reversed the convictions in one case using the clear and present danger test—three Jehovah's Witnesses in 1943 in the case of Taylor v. Mississippi, 319 U.S. 583 (1943). The Court rejected the argument that the Smith Act was invalid because it prohibited academic discussion. The language of the Act, the Court said, made clear that the Act was directed toward advocacy, not discussion. In Gitlow we have a left-wing socialist prosecuted under New York's statute which made it a crime to advocate violent overthrow of the government.In Dennis, we have a Communist prosecuted under the Smith Act, passed by Congress, that made it a crime to advocate violent overthrow of the government.In short, the statutes in Gitlow and in Dennis for all practical purposes were identical—advocating violent overthrow of the government was forbidden. Both Gitlow and Dennis were convicted of advocating communist revolution. n Gitlow, the Supreme Court says, we're not going to use the clear and present danger test. Why not? The legislature has already decided that words advocating violent overthrow present a danger. We're going to defer to the legislature's judgment.In Dennis, an almost identical case, the Court says, we're going to apply the clear and present danger test. The Supreme Court is clearly struggling in the area of First Amendment freedom of speech—political speech. It's even contradicting itself.

Judge Learned Hand

gravity - (minus) improbability= invasion of free speech Let's say that the gravity is high-if it happens, it will be awful. And the improbability is low, meaning the probability is high, so it likely will happen. high gravity and low improbability = a high degree of invasion of speech This test calls for a balancing act. On the one hand, there's the gravity of the evil, discounted by its improbability. On the other hand, there's the amount of invasion of free speech necessary to avoid the danger. The greater the gravity of the evil, the greater the invasion of free speech that the court will allow.

A little History

he historical source of U.S. law is British law. Back in the Middle Ages in England, law was dealt with on a local level by unsophisticated courts following local custom What did early America rely on for precedents? British common law, and good old William Blackstone with his Commentaries on the Laws of England.

Abrams v. United States, 250 U.S. 616 (1919).

holmes was known as the "Great Dissenter," Five defendants, including Jacob Abrams, were born in Russia, hey were part of a rather radical Jewish group that called itself "Frayhayt," which is Yiddish for "freedom," and wrote underground publications titled Frayhayt. Meanwhile, back in Russia, the Bolshevik Revolution occurred in October 1917. Lenin was its leader. The Czar and his family were murdered. Now, in the summer of 1918, the United States had sent 7,000 troops to Siberia. It was supposed to be a strategic move against the Germans on the eastern front. But Abrams and his friends thought that this was an attempt by the United States to crush the Russian Revolution. So they put out pamphlets that attacked the special American expeditionary force that was sent to Russia to defeat the new communist revolutionary government. They were charged with conspiracy to encourage resistance to the war with Germany. holmes famous dissention, however, when he said, "[W]hen men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market...."

Legislative Law

in Parliament lies another major source of law. includes both statutes and constitutions.

3. "some limits; and legal damages."

is the one that the U.S. Supreme Court follows. one can legally be prohibited from saying or printing some things. Those prohibitions are few. But some "prior restraint" on speech and publication is permitted. when the harm outweighs the benefit by enough, then our system does one of two things: 1) prohibits the speech from the outset or 2) permits the speech, but with the proviso that the speaker will pay for any resulting damages. Areas that legislators, judges and others have targeted as harmful include libel, invasion of privacy, and obscenity.

14th Century English dual court system

modern-day dual court system: made up of both federal and state courts 1. King's Courts 2. Chancellor's Courts King's Courts on the one hand, with circuit judges and uneducated juries (uneducated in law). On the other hand, England had Chancellor's Courts, or Courts of Chancery, with an educated judge deciding everything—no jury. Both of these court systems were busy making common law—law developed by the courts, not by Parliament.

William Blackstone

most famous treatise on law. Commentaries on the Laws of England, written between 1765 and 1769. no limits on speech, some damages

Yates v. United States, 354 U.S. 298 (1957).

n Yates, the Court overturned the convictions of fourteen people. The Court didn't rely on the "clear and present danger" test, however. Yates held that the Smith Act does not prohibit "advocacy and teaching of forcible overthrow as an abstract principle." The Court drew a distinction in Yates between advocacy of abstract doctrine and advocacy of action. yates is remembered for rejecting the notion that the First Amendment permits punishing advocacy of abstract doctrine. Only advocacy of action is punishable.

Byers v. Edmondson, 826 So.2d 551 (La. App. 2002).

oliver stone Oliver Stone's 1994 movie, Natural Born Killers, tells the tale of two young lovers who murder their parents and then continue on a violent crime spree. arch 1995, Patsy Byers, a 37-year-old mother of three, was at work in a convenience store in Ponchatoula, Louisiana, when a young Oklahoma couple, Sarah Edmondson and Benjamin Darrus, drove in front of the store and stopped. Sarah Edmondson got out of the car, walked into the store, and shot Byers once in the neck. Byers fell to the floor. In an instant, she had become paralyzed from the neck down. The court concluded flatly: "Based on our viewing of the film, we conclude that nothing in it constitutes incitement." As the court explained, "To justify a claim that speech should be restrained or punished because it is or was an incitement to lawless action, the court must be satisfied that the speech (1) was directed or intended toward the goal of producing imminent lawless conduct and (2) was likely to produce such imminent conduct."

"judicial activists," or liberals.

other, more active judges, relish policy making. They'll read things into the Constitution that aren't stated there explicitly, but that they consider to be there implicitly.

Waller v. Osbourne, 763 F. Supp. 1144 (D.C. Ga. 1991),

parents whose son committed suicide in Georgia sued rock star Ozzy Osbourne and his record company, saying the youth shot himself after listening repeatedly to the song, "Suicide Solution." Lyrics included: Ah know people You really know where it's at You got it Why, why Get the gun and try it Shoot, shoot, shoot. His parents sought $9 million in damages. They contended that the music "incites imminent lawless action" and thus should be stripped of First Amendment protection. Employing the Brandenburg v. Ohio test, the trial court made clear that the music would lose its First Amendment protection only if the court found that the music was "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The court concluded that the music didn't constitute "culpable incitement." While extending its sympathy to the grieving parents, the court extended full First Amendment protection to the music.

5th amendment

passed in 1791 along with the First Amendment as part of the Bill of Rights. The Fifth Amendment gives us the right not to incriminate ourselves, the right to be silent. Freedom of speech entails the freedom not to speak. Some of the worst atrocities in humankind's history have been committed while attempting to extract confessions from people.

Espionage Act of 1917

people could be punished for obstructing military recruitment, or for causing disloyalty or insubordination within the armed forces, or for conspiring to obstruct recruitment or cause insubordination. allowed the postmaster general to exclude seditious material from the mail. Often when the government wants to restrict ideas, it restricts use of the mail to distribute those ideas. 1918- aw was broadened. Urging curtailment of the production of necessary war material, such as ammunition, was now also a crime. Roughly 1,900 persons were prosecuted under the Espionage Act, and 100 or so newspapers and periodicals were excluded from the U.S. mail.

precedents

prior cases whose principles are used by judges as the bases for their decisions in present cases

Regulation of Printing Act

required that all books be censored before publication.

Immanuel Kant (1724-1804),

simplistic statement of the ethical view of the German philosopher: Rights must be universal. If it can't be universal, it isn't moral. (john milton is the opposite of this, wanted to grant free speech but not to catholics)

dicta

statements made in a judicial opinion that are not essential to the decision of the case these collateral or gratuitous statements that weren't necessary for the court to make in deciding the case Dicta certainly can be the handwriting on the wall. So remember that it's the holding of a case that gives us precedent. But dicta, although technically not precedent, can in fact be very indicative of how the court will decide cases in the future.

Gitlow v. New York, 268 U.S. 652 (1925).

the case where the U.S. Supreme Court says that freedom of speech and press are among the "fundamental liberties" protected by the due process clause of the Fourteenth Amendment. In short, Gitlow says that states cannot deprive a person of freedom of speech without due process. What did Gitlow do? He violated the New York statute that made it a felony to advocate violent overthrow of the government. That statute was passed in 1902 after an anarchist fatally shot President William McKinley e arranged for a "Left Wing Manifesto" to be published in a magazine called Revolutionary Age. He was the magazine's business manager. The Manifesto called for mass strikes aimed at destroying our democratic state and establishing a "revolutionary dictatorship of the proletariat"—communist socialism. According to the Court, the Manifesto was not abstract philosophical doctrine or mere prediction of Communist victory. That wouldn't have been enough to convict Gitlow. But the Court said the Manifesto contained "the language of direct incitement." The Court said, "[T]he immediate danger is none the less real ..., because the effect of a given utterance cannot be accurately foreseen. ... A single revolutionary spark may kindle a fire that ... may burst into a ... conflagration." The state, according to the Court, didn't have to wait for "actual disturbances of the public peace or imminent ... danger of its own destruction." Instead, the state could suppress the threatened danger in its "incipiency," in its very beginning. Is the court applying clear and present danger in Gitlow? No.The Court said this case was different than the Schenck type of cases that prohibited acts such as obstruction of recruitment but didn't prohibit specific language. But the Court said that in Gitlow's case, the legislature had already determined that a danger existed from specific language—language advocating the violent overthrow of government. Holmes, as you might well guess, dissented in Gitlow. He thought the clear and present danger test should be applied. "Every idea is an incitement. ... The only difference between the expression of an opinion and an incitement ... is the speaker's enthusiasm for the result. Eloquence may set fire to reason."

Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1991).

the manufacturer of the parlor game "Dungeons & Dragons" also prevailed in a suit. Claiming that "Dungeons & Dragons" so obsessed her son that he committed suicide, a mother sued for wrongful death but lost in the 1991 case The court concluded that the boy's "death surely was not the fault of his mother, or his school, or his friends, or the manufacturer of the game he and his friends so loved to play. Tragedies such as this simply defy rational explanation, and courts should not pretend otherwise." The court also rejected a negligence theory, saying that the contents of the game wouldn't have given its manufacturer "reason to foresee that players of the game would become more susceptible to murder or suicide than non-players."

Martin v. Hunter's Lessee, 14 U.S. 304 (1816).

the principle of the case is highly relevant: The U.S. Supreme Court can determine whether a decision of a state's highest court is constitutional.

The "Orange Zone"

troubled water. The law isn't clear-cut. You may be all right, or you may not.

First Legal Treatise

written in 1187 by a man named Glanvill.